Opinion
No. FA 89 0062157-S
September 2, 2003
MEMORANDUM OF DECISION
This matter is before the court on plaintiff's Motion For Modification of Alimony, Postjudgment, January 15, 2002 [159, 159.5, 159.75] and Amended Motion For Modification of Alimony, Postjudgment, March 18, 2002 [162.] The motion and the amended motion are substantially the same.
Some background is in order.
The parties 17-year marriage was dissolved on March 19, 1992. The parties had made agreements incident to the dissolution. The agreements of the parties were approved by the court and incorporated by reference in the judgment. Judgment file, March 19, 1992, p. 2. [134.50.]
Regarding incorporation, the judgment file provides:
AND, it is further adjusted [Sic.] that the stipulations for settlement dated March 18, 1992 and March 19, 1992 are hereby incorporated by reference into the dissolution judgment of this court . . ."
Judgment file March 19, 1992, p. 2 [134.50.]
A Separation Agreement dated March 19, 1992 contained the provisions regarding alimony in Article III thereof.
III. ALIMONY
The Husband shall pay to the Wife as periodic alimony the sum of Six Hundred Seventy-Three and Eight Hundredths ($673.08) Dollars per week until the first to occur of;
(a) the death of either party;
(b) or the remarriage of the wife,
at which time alimony shall terminate notwithstanding any provision which may be construed to the contrary concerning modification.*
Ten years from the date hereof, unless sooner terminated, alimony shall be reduced to One ($1.00) Dollar per year, modifiable upwards only in the event of the Wife's medical disability which prevents the Wife from gainful employment;
In the event the Wife seeks to modify alimony due to a medical disability as defined herein, the Husband shall have the right to have the Wife examined by a competent physician of his own choosing.
The addendum provided:
Separation Agreement, March 19, 1992, p. 2. [133]
Simply stated, ten years after the judgment, i.e., as of March 19, 2002, alimony was to be reduced to "One ($1.00) Dollar per year." That "One ($1.00) Dollar per year alimony was modifiable upwards only "in the event of the Wife's medical disability which prevents the Wife from gainful employment."
In January 2002, plaintiff filed her Motion For Modification of Alimony, Postjudgment, January 15, 2002 [159, 159.5, 159.75]. In March 2002, she filed the amendment. Amended Motion For Modification of Alimony, Postjudgment, March 18, 2002. [162] [Hereinafter, "present motion. "]
The amended motion is set forth verbatim:
AMENDED MOTION FOR MODIFICATION OF ALIMONY, POSTJUDGMENT
March 18, 2002
The plaintiff in the above mentioned matter respectfully represents the following:
1. A dissolution of marriage entered on March 19, 1992; 2. At that time, the defendant was ordered to pay to the plaintiff as periodic alimony, the sum of $673.08 per week until the first to occur of:
a. The death of either party;
b. or the remarriage of the plaintiff;
at which time alimony shall terminate notwithstanding any provision which may be construed to the contrary concerning modification. Within five years from the date hereof, the plaintiff's cohabitation, at [Sic.] that term is defined under Connecticut General Statute 46b-86b shall not be a basis for modification. Likewise, if the defendant's income should increase from $150,000.00 gross per year to $200,000.00 gross per year, then said increase shall not be deemed a substantial change of circumstances justifying modification of alimony.
Ten years from the date hereof, unless sooner terminated, alimony shall be reduced to One ($1.00) Dollar per year, modifiable upwards only in the event of the plaintiff's medical disability which prevents the plaintiff from gainful employment;
3. The plaintiff, due to a medical disability, is unable to acquire gainful employment;
4. The income of the defendant has substantially increased;
5. The plaintiff is unable to support herself without a modification of alimony as provided for in the separation agreement and dissolution of marriage judgment;
WHEREFORE, the plaintiff in the above mentioned matter respectfully requests that the court enter the following in accordance with the judgment and/or in accordance with Connecticut General Statues [Sic.] 46B86(a) [Sic.]:
a. That an immediate hearing be scheduled on or before March 19, 2002 regarding the issue of alimony;
b. That the plaintiff seeks an order of alimony to be no less than the present order being paid by the defendant and further based upon the defendant's income;
c. All other relief, in law or in equity, that the plaintiff may be entitled to.
Amended Motion For Modification of Alimony, Postjudgment, March 18, 2002. [162]
The only difference between the motion and the amended motion appears in the portion wherein plaintiff lists the relief she seeks. The amended motion reads in pertinent part:
WHEREFORE, the plaintiff in the above mentioned matter respectfully requests that the court enter the following in accordance with the judgment and/or in accordance with Connecticut General Statues [Sic.] 46B 86(a):
[Emphasis added.] The motion did not contain the emphasized words.
In her motion and amended motion for modification of alimony, plaintiff quotes the specific language from the judgment incorporated separation agreement (Article III) which permits an upward modification of the "One ($1.00) Dollar per year" alimony only "in the event of the plaintiff's medical disability which prevents the plaintiff from gainful employment." As noted in motion and amended motion, this provision provides for the amount of alimony to be paid "[t]en years from the date hereof." Clearly, the "One ($1.00) Dollar per year" alimony and its possible modification only "in the event of the plaintiff's medical disability which prevents the plaintiff from gainful employment" relates to the time after March 19, 2002 (i.e., ten years after the date of the judgment). Plaintiff's counsel made it abundantly clear that plaintiff, in her motion and amended motion intended to show that as of March 19, 2002 plaintiff was medically disabled and was thereby prevented from gainful employment. At a hearing on May 2, 2002, plaintiff's counsel stated:
. . . The judgment and the separation agreement clearly states that there was an order of alimony for ten years. It was to go to a dollar a year March of this year. And then it was, the burden on Ms. Levine to come into this Court to prove she is unable to be gainfully employed due to medical disabilities. And if we prove that issue, we are able to seek an order of alimony.
Transcript of Proceedings, May 2, 2002, p. 4.
Later, plaintiff's counsel argued:
She should not be precluded from addressing the very agreement in writing and by order that these parties intend that if she was medically disabled today March 2002 and she can not be gainfully employed that she should not be left with a dollar a year . . .
Transcript of Proceedings, May 2, 2002, p. 15.
Plaintiff's 2002 motion and/or amended motion (present motion) were scheduled for hearing on May 2, 2002. The court reviewed the file before the scheduled hearing. It looked at the 2002 motion and amended motion then before the court. It also reviewed the pertinent parts of the judgment file, and the incorporated Separation Agreement, particularly Article III thereof, the only provision (s) relating to alimony.
The judgment file itself does not mention alimony.
The file showed plaintiff had previously filed for a modification of alimony. See PLAINTIFF'S POSTJUDGMENT MOTION TO MODIFY ALIMONY, February 23, 2000 [159, 159.5, 159.75.] The file showed that on May 18, 2001, there had been a full evidentiary hearing on that motion. That motion was denied by the court on June 20, 2001.
Barely seven months after the denial of that motion, plaintiff, with new counsel, filed the present motion for modification now before the court.
Her fourth in this action.
The court noted the similarity of the grounds asserted for modification in the two postjudgment motions to modify. This raised the question whether the denial of the earlier motion was a bar to the plaintiff's proceeding again on what appeared to be the same claim.
Res judicata may be raised by the court sua sponte. Legassey v. Shulansky, 28 Conn. App. 653, 654 (1992); Roman v. Dimyan, 63 Conn. App. 702, 706, n. 10 (2001); certification denied, 258 Conn. 942 (2000).
When the hearing began on May 2, 2002, the court intended to raise its question about preclusion. Rather than hear hours or days of testimony and then possibly determine that plaintiff was precluded by the court action on the earlier motion, the court, at least tentatively, believed the question of preclusion should be resolved before taking testimony.
At the very beginning of the hearing, an issue regarding a motion in limine came up. That motion, defendant's, had not been filed. There were extended statements/arguments by counsel regarding the scope of the hearing, mainly the effect of the denial of the earlier motion, the effect that denial had on plaintiff's ability to prove her disability, i.e., whether she could only present evidence of a disability arising after the denial of the earlier motion.
The court then stated, somewhat inartfully, its concern or question that the hearing and decision on the earlier decision precluded plaintiff's "getting a second bite at the apple." The court stated: "It seems to me we're going over the same grounds that have already been decided by Judge Fischer. [13] The court stated it would confront the jurisdictional issue before proceeding further. Plaintiff's counsel asked for "a brief continuance to address this issue and brief this appropriately." [16] The court stated: "I will give you any opportunity if you want to address the issue."
The court stated it had not decided anything but did want to hear the parties on the issue raised by the court, i.e, whether or not the denial of the earlier motion for modification precluded plaintiff relief on her present motion, and if so, to what extent.
The case was then continued in order for the parties to file briefs addressing the issue (s) and concerns raised by the court.
Plaintiff initially responded by hiring additional counsel who filed plaintiff's MOTION FOR DISQUALIFICATION — POSTJUDGMENT, June 2, 2002. [165.25] That motion sought the disqualification of the undersigned. It was heard and denied.
Her fifth in this action.
The plaintiff's earlier motion for an alimony modification is set forth below.
PLAINTIFF'S POSTJUDGMENT MOTION TO MODIFY ALIMONY
March 28, 2000
Plaintiff in the above-captioned matter respectfully represents that a judgment of dissolution of marriage was entered into on March 19, 1992 (Spallone, J.). The judgment of dissolution was based upon a Separation Agreement of the parties dated March 1, 1992 and incorporated by reference into the judgment of the court.
Among the provisions in the judgment were provisions for the payment of alimony as described in Article III. Since the entry of the current orders, there have been substantial changes in circumstances as follows:
1. The income of the Defendant has, upon information and belief of the Plaintiff, substantially increased.
2. The Plaintiff has developed serious medical problems which have impaired her ability to obtain and maintain gainful employment.
3. The Plaintiff's medical condition has required the expenditure of substantially more money for insurance, care, medical care and pharmaceutical treatment than was contemplated at the time of the original decree.
WHEREFORE, Plaintiff moves for an order modifying the existing orders of alimony to sums that are consistent with the current financial circumstances of the parties and the provisions of Connecticut General Statute § 46b-82.
Plaintiff's Postjudgment Motion to Modify Alimony, March 28, 2000. [142.75]
That motion was fully heard by the court on May 18, 2002. The court (Fisher, J.) denied the motion on June 2002.
The court's denial of the motion on June 2002 was a final judgment. Neither party appealed. For claim preclusion purposes, res judicata, the court's June 2002 denial of that alimony modification motion was a final judgment.
Plaintiff's response to the denial of the earlier motion was to hire new counsel. Then, barely seven months after the denial of her earlier motion for an alimony modification, plaintiff filed the present alimony modification motion.
The plaintiff claims in her present Motion For Modification of Alimony, Postjudgment, dated January 15, 2002 [159, 159.5, 159.75] now before the court that she is entitled to an upward alimony modification because "due to a medical disability, [she] is unable to acquire gainful employment." Plaintiff relies on the provision of the March 19, 1992 Separtion Agreement and judgment, which incorporates the terms of the March 19, 1992 Separation Agreement. The motion sets forth Article III of the Separation Agreement which provides for alimony after ten years of "One ($1.00) Dollar a year, modifiable upwards only in the event of Wife's medical disability which prevents the Wife from gainful employment." Plaintiff succinctly describes her present claim: ". . . she is currently medically disabled and unable to be gainfully employed." Plaintiff's Memorandum of Law, June 10, 2002, p. 9. [165.75]
In her present motion, plaintiff seeks alimony for the period after March 19, 2002.
In order to determine if the present motion and the claim made therein are precluded by the denial of the earlier motion, the court must compare the present motion with the earlier motion and the judgment thereon denying it. Fink v. Golenbeck, 238 Conn. 183, 192 (1996).
The court must determine if the same claim was made by plaintiff when she presented her earlier Plaintiff's Postjudgment Motion to Modify Alimony, March 28, 2000. In that motion, plaintiff referred to the Separation Agreement which was incorporated by reference in the judgment, and the alimony provisions in Article III [of the incorporated Separation Agreement]. Plaintiff then alleged she "ha[d] developed serious medical problems which have impaired her ability to obtain and maintain gainful employment."
The earlier and present motion both undeniably rely on the following provision of the March 19, 1992 Separation Agreement which was incorporated in the judgment:
Ten years from the date hereof, unless sooner terminated, alimony shall be reduced to One ($1.00) Dollar per year, modifiable upwards only in the event of the Wife's plaintiffs' medical disability which prevents the Wife from gainful employment.
In her present motion, plaintiff alleges:
The plaintiff, due to a medical disability, is unable to acquire gainful employment.
In her previous motion, plaintiff alleged:
The Plaintiff has developed serious medical problems which have impaired her ability to obtain and maintain gainful employment.
Plaintiff's use of the term, "gainful employment" in both motions is hardly a coincidence. That term is the key to the provision in Article III of the Separation Agreement which permits an upward modification of the "One ($1.00) Dollar per year" alimony in effect as of March 19, 2002 (ten years after the judgment). On its face, the March 28, 2000 alimony modification motion shows that plaintiff was requesting an upwards modification of the "One ($1.00) Dollar per year" alimony which would be in effect after March 19, 2002.
A comparison of these two allegations shows each is the functional equivalent of the other.
At the May 18, 2001 hearing on the earlier motion, plaintiff's counsel made it clear plaintiff was then requesting an upwards modification of the "One ($1.00) Dollar per year" alimony which would be in effect after March 19, 2002. As the hearing began, plaintiff's counsel volunteered to give the court a precis of plaintiff's claim.
Attorney Cohen: Since I represent the plaintiff, Your Honor, I would be happy to focus the issue for you. At the time —
Counsel for the plaintiff, Attorney Gary Cohen.
Transcript of Proceedings, May 18, 2001, morning session, p. 4.
Plaintiff's counsel then asked for and was given permission to make an opening statement.
Attorney Cohen: . . . The matter went to judgment in March of 1992 . . . In any event, an agreement was reached, and judgment was entered on that agreement on March 19, 1992. Pursuant to that judgment, Mrs. Levine, the Plaintiff, was entitled to alimony for a period of ten years at which time the issue that there would be a reduction to a dollar a year unless there had been a previous modification. It was clearly anticipated. Your Honor can see this from the terms of the original separation agreement upon which the judgment was entered. It was contemplated that Mrs. Levine would secure gainful employment and would help contribute to her own support.
Since that time, Mrs. Levine's medical condition has declined precipitously. There is a folder that your clerk has, medical reports and other documents relating to Mrs. Levine's medical condition that, we believe, substantiate her claim of inability to work, both a physical inability to work and various emotional conditions which render it virtually impossible for her to be gainfully employed . . .
The issue that is coming before you is Mrs. Levine's claim that because of her inability to work, the anticipated goal of her contributing to her own employment by — contributing to her own support by virtue of her earned income has not materialized and is likely never to materialize. Her expenses have increased significantly because of the extraordinary amounts that she must spend on medical care, prescription drugs, and the other necessary consequences of her unfortunately deteriorating condition.
Mr. Levine, on the other hand, has continued to flourish, and it's a matter of a marriage of some length. We believe that it is appropriate for the Court to modify both the amount of alimony and to extend the term of the original order, as far as the substantive order is concerned, rather than allowing it to be reduced to the nominal amount that the judgment would call for where there were not any substantial change in circumstances. In a nut shell, that's the claim.
Transcript of Proceedings, May 18, 2002, morning session, p. 5-7.
Plaintiff's counsel clearly sought a modification of the "One ($1.00) Dollar per year" alimony which would not take effect until March 19, 2002. And, the grounds for same were plaintiff's inability to "secure gainful employment." That is what plaintiff is seeking in her present motion.
Thereafter, defendant's counsel gave a brief statement.
Plaintiff's counsel then offered a brief rebuttal.
Attorney Cohen: May it please, Your Honor, since I would make a very brief rebuttal. The agreement itself, and the judgment upon which it was based, states and Your Honor can find this in paragraph three of the judgment, page two of the appended agreement.
Ten years from the date hereof, unless sooner terminated, alimony shall be reduced to one dollar per year, modifiable upwards amount only in the event that the wife's medical disability which prevents the wife from gainful employment . . .
I can only comment on the final agreement and judgment specifically contemplates the circumstances we now have, and the medical evidence which we claim was submissable under the Statute, which is in your clerk's possession, will substantiate the allegations by Mrs. Levine that the Court can easily come to the conclusion based on the presently available medical evidence that this lady has not for a long time been able to contribute to her own well-being, nor will she be able to do so in the future. It also substantiates her claim that her expenses have increased substantially because of the medical costs associated with her continuing treatment. Thank you.
Transcript of Proceedings, May 18, 2002, morning session, p. 9-10.
The court then heard evidence. At one point, plaintiff offered the reports of her treating physicians. Defendant objected. Plaintiff's counsel then argued:
Attorney Cohen: May I also point out, Your Honor, that the separation agreement upon which the judgment was founded provides quote, and this is now from article three: In the event the wife seeks to modify alimony due to a medical disability, the husband shall have the right to have the wife examined by a competent physician of his own choosing. Your Honor just makes a cursory examination of the motion. It was filed over a year ago in March of the year 2000. You will see the allusion to and allegation of medical problems of Mrs. Levine for reasons known only to the defendant and his Counsel. He has seen fit not to avail himself of the contractual right that he had to seek a medical examination of Mrs. Levine, and this lady was examined on deposition by Mr. Gould, at some length months ago, at which time these various conditions were also alleged and were the subject of this sworn testimony.
Transcript of Proceedings, May 18, 2002, afternoon session, pp. 19-20.
Counsel for plaintiff's reference to a medical examination comes from the alimony provision in the Separation Agreement.
Ten years from the date hereof, unless sooner terminated, alimony shall be reduced to One ($1.00) Dollar per year, modifiable upwards only in the event of the Wife's medical disability which prevents the Wife from gainful employment;
In the event the Wife seeks to modify alimony due to a medical disability as defined herein, the Husband shall have the right to have the Wife examined by a competent physician of his own choosing.
The "contractual right that he [defendant] had to seek a medical examination of Mrs. Levine" is triggered only "[i]n the event the Wife seeks to modify alimony due to a medical disability as defined herein." But that only pertains to the period after "ten years from the date hereof" when the alimony was reduced to "One ($1.00) Dollar per year" and only if plaintiff sought an upward modification "in the event of the plaintiffs' medical disability which prevents the plaintiff from gainful employment." Counsel for plaintiff clearly was asking the court to enter an order then (May 2001) modifying upwards the alimony which would be in effect ten years after the judgment, i.e., after March 19, 2002.
Later, defendant's counsel objected to certain of plaintiff's cross examination of the defendant. Plaintiff's counsel responded to the objection.
Attorney Cohen: May it please, Your Honor, I invited the Court earlier to look at article three in which the likelihood of a need for modification is [Sic.] to term was built into the agreement by the parties themselves.
So the fact that the witness was going to consider a second look is certainly nothing new, and the suggestion that because nine years postjudgment she aveils [Sic.] herself of a statutorily given right to appeal to the Court for modification based on circumstances that she says have arisen since the judgment certainly does not allow Counsel to impugn her motivation by in March of 1992.
Transcript of Proceedings, May 18, 2002, morning session, p. 59.
A look at counsel's words, "article three in which the likelihood of a need for modification is [Sic.] to term was built into the agreement by the parties themselves" again reveals that plaintiff was then (May 2001) relying on the only provision in Article III which provided for a modification of alimony. That is the provision which provided for alimony ten years after the judgment.
While testifying at the May 18, 2001 hearing on the earlier motion, plaintiff stated: ". . . I am here like it says in my decree that if due to medical disability I can't work . . ." Transcript of Proceedings, May 18, 2001, morning session, p. 43. Plaintiff's words, "my decree that if due to medical disability I can't work," presents a lucid admission by plaintiff that she was then (May 2001) seeking to invoke the decree's clause which was to control alimony after March 19, 2002. And, plaintiff's saying she was not just in court because her medical bills during the ten years immediately following the judgment had increased is an unequivocal statement she was then (May 2001) in her earlier motion seeking not only an increase in the original alimony being paid in the first ten years but also for the period after that ten years when the alimony was to revert to "One ($1.00) Dollar per year."
The question and plaintiff's full answer thereto is set forth:
Q. [By defendant's counsel, Attorney Howard Gould] On a monthly basis, what, you're talking two, three hundred dollars per month at the time of your divorce, and now you are talking roughly $600.00 per month and that's the increase which leads you into Court for more alimony?
A. I'm not here just because of that. I am here like it says in my decree that if due to medical disability I can't work and not just to cover medical bills, nowhere does it say that.
Transcript of Proceedings, May 18, 2001, morning session, p. 43.
After the evidence had been concluded, the court heard arguments. A part of plaintiff's counsel's argument is set forth below.
Attorney Cohen: . . . But in this case, Judge, the compelling evidence is that the Levine family dealt with, was aware of the fragile emotional and physical condition of Mrs. Levine herself at the time of the original decree.
There is no other reason that is reasonable to make the interlineation [Sic.] in article three of their separation agreement regarding the right to have a medical examination regarding the prospect for upward modification of the nominal alimony award as of March 1992, the expiration of the 10-year term. Nowhere in that agreement, nowhere in the judgment is there the slightest suggestion that if Mrs. Levine's medical condition warrants it, the substantial amount of alimony ought not to continue; and we urge the Court to find . . .
I'm aware of Mr. Gould's argument that it's not March of '92 yet — I'm sorry, of 2002 yet; nevertheless, your Honor, we are so close to that date and the evidence is so compelling, I would urge the Court to consider the propriety of to modifying that amount now so that these parties are not put through the additional emotional and physical trauma of rehearing that issue just a few months from now. And your Honor, the evidence before you — again, uncontradicted evidence from Mrs. Levine that she has no reasonable prospects for future employment ever. That evidence is not contradicted.
Transcript of Proceedings, May 18, 2002, afternoon session, pp. 12-13.
There can be no doubt that plaintiff, during the May 2001 hearing on the earlier motion, urged the court to "[modify] that amount [the "One ($1.00) Dollar per year] now so that these parties are not put through the additional emotional and physical trauma of rehearing that issue just a few months from now." What other meaning can these words of counsel have:
. . . it's not March of '92 yet — I'm sorry, of 2002 yet; nevertheless, your Honor, we are so close to that date and the evidence is so compelling, I would urge the Court to consider the propriety of to modifying that amount now so that these parties are not put through the additional emotional and physical trauma of rehearing that issue just a few months from now. And your Honor, the evidence before you — again, uncontradicted evidence from Mrs. Levine that she has no reasonable prospects for future employment ever. That evidence is not contradicted.
There is no doubt that plaintiff via her Postjudgment Motion to Modify Alimony, March 28, 2000 [141.75] claimed the alimony of "One ($1.00) Dollar per year" which would be in effect as of March 19, 2002 should be modified upwards because she "ha[d] developed serious medical problems which have impaired her ability to obtain and maintain gainful employment." Plaintiff in 2000 and 2001 via her earlier motion sought a modification of the alimony of "One ($1.00) Dollar per year" which was to take effect on and after March 19, 2002 even though March 19, 2002 was months away. On May 18, 2001, plaintiff's counsel told the court: ". . . Mrs. Levine . . . has no reasonable prospects for future employment ever. That evidence is not contradicted."
Plaintiff can not now disavow the position her counsel maintained on her behalf at the May 18, 2001 hearing on her earlier motion.
A party is bound by a concession made during the trial by his attorney. Kiss v. Kahm, 132 Conn. 593, 595, 46 A.2d 337; Russell v. Lassoff, 125 Conn. 736, 737, 7 A.2d 435; State v. Tuller, 34 Conn. 280, 294; 9 Wigmore, Evidence (3d Ed.) 2594, 2597. The employment of new counsel does not affect the validity of a concession made. Smith v. Whittier, 95 Cal. 279, 289, 30 P. 529.
Housing Authority v. Pezenik, 137 Conn. 442, 448 (1951).
Oral concessions made by a party's attorney during a colloquy with the court constitute judicial admissions. Kopacz v. Day Kimball Hospital, 64 Conn. App. 263 (2001).
"Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings . . . A judicial admission is, in truth, a substitute for evidence, in that it does away with the need for evidence." (Citation omitted; internal quotation marks omitted.) State v. Nguyen, 52 Conn. App. 85, 89-90, 726 A.2d 119 (1999), aff'd, 253 Conn. 639, 756 A.2d 833 (2000). "A party is bound by a judicial admission unless the court, in the exercise of its discretion, permits the admission to be withdrawn, explained or modified." (Internal quotation marks omitted.) Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 127, 739 A.2d 280 (1999).
Kopacz v. Day Kimball Hospital of Windham Cty., 64 Conn. App. 263, 272-73 (2001).
In fairness, plaintiff's present attorneys have not denied her present claim also was made in her earlier motion.
Plaintiff has filed a brief addressing the preclusion issue raised by the court. Plaintiff's Memorandum of Law, June 10, 2002 [165.75]. In it, plaintiff does not even argue that the claim being made in her motion now before the court was not made in her earlier motion.
Plaintiff has recognized that the earlier motion made the claim now being asserted. At the May 2, 2002 hearing on the present modification, plaintiff's counsel spoke of the prior motion and the denial thereof:
ATTORNEY FACCADIO: There was a denial of that motion. I take that denial as it was a premature motion.
Transcript of Proceedings, May 2, 2002, p. 4.
This can have only one meaning. Plaintiff's counsel believed the earlier motion was denied because the motion was premature, i.e., was brought before March 19, 2002 and before the modification provisions of Article III were to control the amount of alimony to be paid after March 19, 2002. This is an unadulterated acknowledgment by plaintiff that the claim made in the earlier motion is the same made in the motion now before the court.
In her June 10, 2002 brief, plaintiff maintains:
The plaintiff is entitled to a hearing on her motion for modification.
It should not be without legal significance to the resolution of this issue that the plaintiff relies in her current motion for modification on both General Statutes § 46b-86 and the contractual agreement between the parties set forth in their Separation Agreement and incorporated as an order of the court into the dissolution that at such time as the plaintiff's alimony is modified to $1.00 per year, it is modifiable upward if the plaintiff is medically disabled and unable gainfully to be employed. "`[General Statutes § 46b-86] is a separate and independent statutory basis for the modification of alimony and is a claim which must be raised in a written motion by the party seeking to modify the award of periodic alimony.' (Internal quotation marks omitted.) Mihalyak v. Mihalyak, 30 Conn. App. 516, 520, 620 A.2d 1327 (1993). Clark v. Clark, 66 Conn. App. 657, 664 (2001). The plaintiff complied with this requirement. The plaintiff, however, also relied in her motion for modification, on the actual language of the Separation Agreement, thereby invoking a contractual claim not previously litigated.
"`The [Separation] Agreement was ordered incorporated into the dissolution decree. "`A judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract.' (Internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999); see also Mihalyak v. Mihalyak, 30 Conn. App. 516, 522, 620 A.2d 1327 (1993) (judgment that incorporated separation agreement to be regarded as contract and construed pursuant to contract law); Sweeny v. Sweeny, 9 Conn. App. 501-02, 519 A.2d 1237 (1987) (same)." Clark v. Clark, 66 Conn. App. 657, 665 (2001). "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." Clark v. Clark, 66 Conn. App. at 666. (Internal quotation marks omitted.) (Citation omitted.)
There has never been an adjudication of the contractual obligation of the defendant to pay an upward modification of alimony to the plaintiff in the event, at the time her alimony is reduced to $1.00 per year pursuant to the terms of the Separation Agreement, she is medically disabled which prevents her from gainful employment. Moreover, "[h]ealth is a material factor in awarding alimony. General Statutes § 46b-82; Gallo v. Gallo, 184 Conn. 36, 49, 440 A.2d 782 (1981)." McGuinness v. McGuinness, 185 Conn. 7, 10-11, 440 A.2d 804 (1981). "To establish the need for an increase or continuation of alimony when the recipient's health has substantially deteriorated, she need only show that she is unable to meet her medical expenses and that the payor is amply able to pay the increased alimony. See Labrie v. Labrie, 113 N.H. 255, 305 A.2d 687 (1973)." McGuinness v. McGuinness, 185 Conn. 7, 10-11, 440 A.2d 804 (1981).
Plaintiff's Memorandum of Law, June 10, 2002, pp. 4-5. [165.75]
Plaintiff says that in her present motion she relies on two means for an alimony modification, namely (1) C.G.S. 46b-86 and (2) "the actual language of the Separation Agreement, thereby invoking a contractual claim not previously litigated."
The "contractual claim not previously litigated" argument or contention is of no help to the plaintiff. In fact it cuts to the core against her. First, it is another unequivocal acknowledgment that the claim being made in the present motion was also made in the earlier motion.
Of equal or greater significance, the fact that the so-called "contractual claim" was not "not previously litigated" does not put that "contractual claim" out of bounds for res judicata or claim preclusion purposes.
The court does not agree that the "contractual claim" was not litigated in the proceedings on the earlier motion.
The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.
[Internal quotation marks omitted.] Fink v. Golenbock, 238 Conn. 183, 191 (1996).
For res judicata purposes, plaintiff's attempt to clad her present claim as a contractual cause of action is of no avail. Whether her claim is brought pursuant to C.G.S. § 46b-86 or under a contract theory, the same operative facts are the basis for the claim under either legal theory.
The Separation Agreement and judgment did not preclude modification during the first ten years.
A medical disability which prevented gainful employment could have warranted a modification of alimony during the ten-year period immediately after the judgment. Such a claim was included in the earlier motion. But, in view of the language in the earlier motion paralleling the language of Article III and the stance she took before the court during the May 18, 2001 hearing on that motion, plaintiff cannot credibly claim now that she did not claim in the earlier motion an upwards modification of the "One ($1.00) Dollar per year" alimony which would otherwise be in effect after March 19, 2002.
In the various memoranda plaintiff has filed with the court regarding the preclusion question raised by the court, plaintiff has never asserted before the court that the claim now before the court was not made in the earlier motion. Nor has she done so in oral arguments before the court. She has not addressed claim preclusion, i.e., res judicata. Plaintiff has mentioned issue preclusion or collateral estoppel. Her silence on claim preclusion is at least some indication that she recognizes the identity of the claims.
The court holds that the claim made in the present motion for alimony modification now before the court was made in the earlier motion.
Motion For Modification of Alimony, Postjudgment, January 15, 2002 [159, 159.5, 159.75] and Amended Motion For Modification of Alimony, Postjudgment, March 18, 2002 [162.]
Plaintiff's Post Judgment Motion to Modify Alimony, March 28, 2000 [142.75.]
The reason or reasons for the denial of the earlier motion are unknown.
Counsel for plaintiff ventured the earlier motion was denied because it was premature. Transcript of Proceedings, May 2, 2002, p. 4. Apparently plaintiff claims the judgment on the earlier motion was not a judgment on the merits. To be preclusive, a judgment must have been a judgment on the merits.
Application of the doctrine of res judicata requires that there be a previous judgment on the merits. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). "Judgments based on the following reasons are not rendered on the merits: want of jurisdiction; prematurity; failure to prosecute; unavailable or inapptopriate relief or remedy; lack of standing." 2 E. Stephenson, Connecticut Civil Procedure (2d Ed.) 354d.
Legassey v. Shulansky, 28 Conn. App. 653, 658 (1992)
Thus, the judgments based on the following reasons are not rendered on the merits; want of jurisdiction, prematurity, fn158 failure to prosecute, unavailable or inappropriate relief or remedy, lack of standing.
[Footnotes omitted except one shown.] 2 Stephenson's Connecticut Civil Procedure, Third Edition, § 174d. Footnote 158 solely cites Eastern Plumbing Supply Co. v. Levitt, 110 Conn. 564 (1930).
In Eastern Plumbing Supply Co., the Supreme Court held and explained:
In a special defense the defendant set up in bar of the action the judgment in his favor in the former action, as between the same parties and for the same cause of action. In that action the court found that the job of constructing the apartment house was not completed when the action was instituted, and rendered judgment for the defendant on the ground that the action was prematurely brought. The court did not err in ruling that this judgment was not res judicata of the present action. A judgment for the defendant upon the sole ground that the action is premature is not a bar to a subsequent suit for the same cause, begun after the plaintiff's right of action has accrued. Peck v. Easton, 74 Conn. 456, 51 A. 134; Vincent v. Mutual Reserve Fund Life Asso., 77 Conn. 281, 58 A. 963.
Eastern Plumbing Supply Co. v. Levitt, 110 Conn. 564, 567 (1930).
Eastern Plumbing Supply Co. involved a suit for payment due on a construction contract. There had been a prior action for the same claim. The court dismissed the prior action because the contract provided payment was due only on completion of the work. At the time of the prior action, the work had not been completed; payment was not due. The prior action was dismissed as premature. Eastern Plumbing Supply Co. informs what "premature" means in the context of determining if a judgment was on the merits. The situation at bar is not analogous to that in Eastern Plumbing Supply Co. Nothing in the dissolution judgment and/or the underlying Separation Agreement required that plaintiff wait until March 19, 2002 before claiming she would be so disabled on and after March 19, 2002 to be unable to engage in gainful employment. She so contended on May 18, 2001; plaintiff's counsel said there was uncontradicted evidence ". . . Mrs. Levine . . . has no reasonable prospects for future employment ever." Transcript of Proceedings, May 18, 2001, afternoon session, p. 13.
Plaintiff has not brought any authority to the court to the effect that the court could not have decided the claim in 2001 she made for modification of the "One ($1.00) Dollar per year" alimony to take effect on March 19, 2002. The court knows of no reason or authority that would have prevented the court from deciding and ordering well before March 19, 2002 what the alimony should be on and after March 19, 2002 if the court found that the plaintiff would be prevented from gainful employment because of medical disability on and after March 19, 2002. The court has not found any such authority. In making such a claim, plaintiff is a tad disingenuous.
Pearl v. Pearl, 43 Conn. App. 541 (1996), teaches nothing for the situation presented here.
In her present motion, plaintiff specifically asks that her motion "be heard on or before March 19, 2002." Why?
Plaintiff testified at the May 18, 2001 hearing on her earlier motion that she suffered from diabetes, depression, fibromyalgia, thoracic outlet syndrome, carpal tunnel. [13] She had been diagnosed with the diabetes and depression before the dissolution. She did not know of her fibromyalgia, thoracic outlet syndrome, or carpal tunnel at the time of the dissolution. [60] She testified there was absolutely no cure for her lupus, fibromalgia, or depression. [24]
Plaintiff testified she worked part time 8-10 hours per week for a short time in the years immediately after the dissolution. She questioned whether that was gainful employment. [12-13] She stopped because she was physically and emotionally unable to work. [13] She said she had never had gainful employment since the dissolution. [12] On cross examination, plaintiff testified she had not earned more than $1-2,000 a year since the dissolution. [32] She said she was physically disabled in 1996 and emotionally disabled since before the dissolution. [32]
If plaintiff were medically disabled so as to prevent gainful employment and was unlikely to become otherwise, as she testified, nothing would have been gained by requiring her to wait until March 19, 2002 to make and present that claim.
It is significant that plaintiff and her counsel alone controlled the timing of her earlier motion claiming a modification of the alimony which would be in effect on and after March 19, 2002. Obviously, plaintiff and her counsel believed in 2000 and 2001 that plaintiff was then (2000 and 2001) so medically disabled as to prevent her from having gainful employment at that time and that that disability would continue to and after March 19, 2002. Plaintiff decided to make and press her claim well before March 19, 2002. The court denied her claim.
According to the decree, plaintiff is entitled to an alimony modification after March 19, 2002 only in the event of [her] "medical disability which prevents her from gainful employment." The decree permitted modification after March 19, 2002 only if plaintiff was prevented from gainful employment by reason of medical disability. C.G.S. § 46b-86. In early 2000, Plaintiff chose to make her claim that she would be medically disabled and prevented from gainful employment on and after March 19, 2002. In May 2001, she claimed and testified her condition would not improve and therefore she would be medically disabled and prevented from gainful employment on and after March 19, 2002. She saw no need to wait until March 19, 2002 to make her claim of a medical disability preventing gainful employment as of March 2002. Her claim that she would be so medically disabled to prevent gainful employment as of March 2002 was denied. She chose to make and press this claim before March 19, 2002. She should not be heard now to say she was mistaken in doing so.
No good reason appears for requiring plaintiff to wait until March 19, 2002 to make her claim of being disabled as of that date. Plaintiff and her attorney obviously believed she did not have to wait until March 19, 2002. She chose the time to make and press that claim. She presented evidence to establish her claim. She tried to convince the court she would be medically disabled and unable to have gainful employment as of March 19, 2002 and therefore entitled to more than "One ($1.00) Dollar per year" alimony. Her claim was denied.
Mutuality has a distinct place in the prematurity discussion. Plaintiff says her earlier motion was denied because it was premature. That is speculation on her part. Does plaintiff claim the court would have been correct in denying her prior motion in so far as it sought alimony for the period beginning March 19, 2002 because that claim was premature? Consider this. Instead of denying the earlier motion, the court in June 2001 entered an order directing that defendant pay plaintiff alimony of x dollars per week on and after March 19, 2002. That necessarily would have meant the court found, in accordance with her claims made and testimony at the May 18, 2001 hearing, that plaintiff would be so disabled as March 19, 2002 as to prevent her gainful employment. Defendant appealed contending that the court could not make such a finding until March 19, 2002. Does plaintiff truly believe she would have lost that appeal? If so, why did she bother to claim via her previous motion that she was entitled to have the court enter, well before March 19, 2002, an order for alimony as of March 19, 2002? Was plaintiff engaged in misleading the court to make an erroneous premature order? The answer is obvious. Of course not. Plaintiff did not believe she was premature in claiming and seeking alimony for the time beginning March 19, 2002. Plaintiff was correct on this issue in 2000-2001. She could properly then seek alimony as of March 19, 2002 if she could convince the court her condition was such that she would be medically disabled preventing gainful employment as of March 19, 2002. Plaintiff is bound by her prior actions including the claims and contentions made in connection with her earlier motion. She cannot successfully disavow them now.
The courts holds plaintiff's earlier made claim for alimony of more than "One ($1.00) Dollar per year" after March 19, 2002 was not premature. The judgment denying that claim was a judgment on the merits.
The claim that plaintiff would be medically disabled so as to prevent gainful employment was the primary and a requisite hurdle plaintiff had to overcome to get alimony after March 19, 2002. If plaintiff could not establish she would be medically disabled and thereby prevented from gainful employment, she could not modify the alimony provision of "One ($1.00) Dollar per year." Without establishing this, the decree precluded modification. C.G.S. § 46b-87 (a). If she got over this hurdle, she was not, without more, then entitled to alimony after March 19, 2002. She also had to establish the other factors justifying a modification. C.G.S. § 46b-86. The court's denial of her earlier motion without elaboration does not tell the reason (s) for the denial.
The earlier motion also claimed a modification of the alimony then being paid during the ten-year period immediately after the dissolution. For such a modification, medical disability preventing gainful employment was not a prerequisite. The court also denied this aspect of her earlier motion. This at least suggests the court's denial was not predicated solely on whether or not plaintiff had established a medical disability as of March 19, 2002 which would prevent gainful employment.
At the hearing on the earlier motion, plaintiff was unable to present any expert medical evidence to support her claim of a disability which prevented gainful employment. According to plaintiff her prior counsel had not complied with the rules of practice requiring prior disclosure of such evidence. The transcript seems to support this. Transcript of Proceedings, May 18, 2001, morning session, pp. 17-20. Even if that was the reason for the court's denial of the earlier motion, her counsel's mistakes do not abrogate res judicata. According to plaintiff, she should now be given the opportunity to present the expert medical evidence which was not admitted at the May 18, 2001 hearing on the earlier motion. The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. [Internal quotation marks omitted; emphasis added.] Fink v. Golenbock, 238 Conn. 183, 191 (1996).
Plaintiff misfocuses on a possible reason for the denial of the earlier motion. For res judicata purposes, the reasons for the court's denial are usually of no moment. The focus is on the claim or claims made in the motion.
See pp. 30-31 above.[1]
[1] The court does not mean to suggest that the plaintiff's claim for alimony after March 19, 2002 was not actually litigated. There was a full evidentiary hearing and argument on May 18, 2001. Even if plaintiff's expert medical evidence was not admitted, that does mean the matter was not actually litigated.
The principles underlying the doctrine of res judicata, or claim preclusion, are well settled. "[A] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand. Slattery v. Maykut, 176 Conn. 147, 156-57, 405 A.2d 76 (1978). Furthermore, the doctrine of claim preclusion . . . bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made."
Gaynor v. Payne, 261 Conn. 585, 595-96 (2002).
During the May 2, 2002 hearing on plaintiff's present motion, her counsel urged this court to look at the transcript of the hearing on plaintiff's earlier motion. It shows the court "preclude[d] any evidence of disability because they indicated certain experts were not properly disclosed. We in February of this year filed all of the expert opinions most of that pertain in the last couple of years and no objections were raised." Transcript of Proceedings, May 2, 2002, pp. 4-5. Counsel then says "Ms. Levine has the right to have this Court look at her physical and medical condition today for their agreement." Transcript of Proceedings, May 2, 2002, pp. 4-5. Again, plaintiff seeks to have her claim heard by the court multiple times.
The reasons for the doctrine of res judicata are considered.
"`Finally, we recognize that a decision whether to apply the doctrine of res judicata to claims that have not actually been litigated[16] should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close; 1 Restatement (Second), supra, § 24, p. 199; and the competing interest of the plaintiff in the vindication of a just claim. We have stated that res judicata should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation . . . The judicial [doctrine] of res judicata . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest . . . We review the doctrine of res judicata to emphasize that its purposes must inform the decision to foreclose future litigation. The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily. We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. But the scope of matters precluded necessarily depends on what has occurred in the former adjudication.'. . . State v. Ellis, [ 197 Conn. 436, 465-67, 497 A.2d 974 (1985)]." (Emphasis added.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589-92, 674 A.2d 1290 (1996).
Fink v. Golenbock, 238 Conn. 183, 192 (1996).
"The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily." Plaintiff more than suggests the court denied her earlier motion because her counsel had not made the required disclosures of her experts before the hearing. [4-5] Plaintiff "wasn't able to prove it a year ago." [19] The court has looked at "what has occurred in the former adjudication." That included plaintiff's inability to have her expert medical evidence admitted as evidence. That failure, according to plaintiff, was a reason her earlier motion was denied. Letting plaintiff have another hearing on the claim she was unable to prove when fully heard earlier violates the paramount reason for res judicata, "conservation of judicial resources."
When the court denied her earlier motion without any explanation of its reasons, plaintiff could have moved the court for a statement of its decision setting forth the court's "conclusion as to each claim of law raised by the parties and the factual basis therefor." P.B. § 6-1. Plaintiff did not. The denial of the earlier motion was a judgment. Plaintiff could have appealed that judgment. She did not. In making her present motion, plaintiff was required to "state the specific factual and legal basis for the claimed modification." P.B. § 25-26(e). Her present motion does not contain anything which differentiates her present claim from that made in her earlier motion.
Plaintiff's motion as amended is barred by the doctrine of res judicata, claim preclusion.
Plaintiff's motion as amended is denied.
Parker, J.
III. Addendum to Article III.
Within five (5) years, from the date hereof, the Wife's cohabitation, as that term is defined under Connecticut General Statutes 46b-86b shall not be a basis for modification.Likewise, if the Husband's income should increase from $150,000.00 gross per year, to $200,000.00 gross per year, then said increase shall not be deemed a substantial change of circumstances justifying modification of alimony.
Addendum to Separation Agreement dated March 19, 1992.